Posted Thursday, April 3, 2008, at 1:38 AM
A reader of the newly declassified "torture memo" finds herself tempted to live-blog it; that is, to offer online, real-time notes that otherwise would be scrawled in the margins replete with all manner of punctuation symbols (! and ? and, yes, @*?%!). Examples from the 81-page document issued on March 14, 2003, by John C. Yoo , then deputy assistant attorney general, entitled Memorandum for William J. Haynes II , General Counsel of the Department of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States :
obtaining advance information about the identity of al Qaeda operatives and their plans may provide to be the only way to prevent direct attacks on the United States.
Underline's mine, and here's my marginal scrawl: Gov't admits own humint failure.
P. 4, again:
Interrogation of capture al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it.
My underline; marginal scrawl: if true, why did gov't use unreliable methods?
A cathartic exercise, perhaps. But it may be better to push back and take a broader look, as I tried to do after the first slew of such memos was released. In a 2005 article I wrote (P. 2,123):
The torrent of documents leaked in the course of the Abu Ghraib scandal revealed that, in point of fact, government lawyers had been well aware of the intricate legal terrain that the executive detention policy was traversing.
I noted (P. 2,124) that some of the disclosed
legal memoranda, particularly those that established legal sanction for the Executive’s detention and interrogation policies, relied on a legal opinion that the Constitution gives the "President alone" power to determine "any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response," in order to deflect treaty language that might have circumscribed executive action.
This latest memorandum is much in that vein. It oft repeats the "president alone" mantra, and it casts aside all law, domestic as well as foreign, that would appear to constrain the executive. What troubles no less now than it did in 2005 is the fact that aspects of international law had evolved in ways that aided (Pp. 2,124-25) U.S. deflection of international obligation:
[I]nternational human rights law ... reflects the universalist tendencies of ancient natural law yet is codified in positive instruments of law. Yet the internal enforceability of those instruments remained subject to the buffer mechanisms that public international law condones. It was on these mechanisms that government lawyers relied in order to insulate the United States from the effect of international obligations assumed when it became a state party to certain treaties. ...
The newly disclosed memo likewise points to mechanisms such as the non-self-execution doctrine and the conditioning of treaty ratification upon reservations as reasons that laws do not constrain executive officials — military interrogators as an initial matter and, it may be presumed, their superiors, military and civilian.
This March 2003 memorandum goes a step further, turning its analysis inward in a way intended to shield individuals not only from the enforcement of the law of nations, but also from the enforcement of the law of this nation.
Take as an example the Fifth Amendment , which contains the guarantee not only of due process, but also of specific items such as the privilege against self-incrimination. That amendment does not apply to interrogation, it is claimed on Pages 6-8,
? for the reason that it "was not designed to restrict the unique war powers of the President as Commander in Chief"; and
? with regard to extraterritorial interrogation, by reason of the Fourth Amendment-based opinion by Chief Justice William H. Rehnquist in United States v. Verdugo-Urquidez (1990).
Is a reader to infer from the latter assertion, about interrogation outside the United States, that a president has the "war power" to set aside the Fifth Amendment inside the United States? Footnote 10 on Page 8 bolsters such an inference. Citing an October 2001 memo that appears not yet to have been disclosed, the footnote states, supplying its emphasis, that
our Office recently concluded that the Fourth Amendment had no application to domestic military operations.
It is the Fourth Amendment , of course, that protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Apparently some people were not nearly as secure as they might have thought; indeed, an Associated Press report speculates that the 2001 memo gave a green light to warrantless in-country surveillance .
Is a reader properly to assume, moreover, that Verdugo 's discussion of the Fourth Amendment's extraterritorial application vel non applies without further ado to post-9/11 matters? I have argued to the contrary (Pp. 295-99) with regard to the Fourth Amendment itself, and most surely with regard to the Fifth Amendment, which varies in text and background from the Fourth. Counterarguments do not appear within the dense single spaces of this memorandum, however.
Instead, what is found is a steady train of affirming assertions. And more. In 2005 I had found (P. 2,123) in disclosed memoranda a general lack of resort to "the ipse dixits that had characterized public statements" of the executive. Not so in this memorandum. Sweeping assertions like those on Page 13, of executive power to the exclusion of other branches, are supported almost solely by past memoranda of the Office of Legal Counsel.
The disclosed memoranda provided rare and troubling evidence of the deliberate construction of a framework that appeared to be ruled by law, but was not. The framework might better be termed "legalist" rather than "legal"; within it, the only laws recognized were those allowing free rein for presidential prerogative dressed in the guise of legal constraints. For more than two years, laws that the Executive chose neither to acknowledge nor to accommodate seemed not to operate as law at all.